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McGovern v. Quintela

December 10, 2007

DONNA MCGOVERN AND JOSEPH WOZNIAK, PLAINTIFFS-RESPONDENTS,
v.
MICHAEL QUINTELA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-009347-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2007

Before Judges Skillman and Yannotti.

Defendant Michael Quintela appeals from an order entered on September 22, 2006, which denied defendant's motion to vacate a final judgment by default entered in favor of plaintiffs Donna McGovern and Joseph Wozniak on August 11, 2006. For the reasons that follow, we reverse.

On April 10, 2006, plaintiffs filed a complaint against defendant in the Special Civil Part asserting claims under N.J.S.A. 2A:42-10.10, which provides, among other things, that a landlord may not institute an action against a tenant for possession of leased premises as a reprisal for efforts by the tenant to enforce any right under the lease or under state or federal law. According to the complaint, on January 4, 2006, Ms. McGovern brought an action in the municipal court in which she asserted that defendant had committed various violations of local and state building codes that "involved health and safety issues" for plaintiffs and others who reside in defendant's building.

Plaintiffs alleged that, as a result of the commencement of the municipal court action, defendant retaliated by filing a landlord/tenant action seeking their eviction from the premises for non-payment of rent. The action was dismissed when plaintiffs deposited with the court sufficient funds to pay the rent for January, February and March 2006.

Plaintiffs further alleged that on February 9, 2006, defendant's attorney served upon them a notice to cease which stated that plaintiffs were habitually late in paying rent and that Mr. Wozniak was an "unauthorized occupant" of the premises.

On March 15, 2006, defendant filed another landlord/tenant action seeking to remove plaintiffs from the premises.

Plaintiffs demanded a declaratory judgment dismissing the then-pending landlord/tenant action; an injunction requiring defendant to recognize and accept Mr. Wozniak as a residential tenant; monetary damages and costs incurred by plaintiffs in pursuing this action, including their attorney's fees; and such other relief as the court may deem just and equitable.

Plaintiffs also filed a motion to transfer the landlord/tenant action to the regular civil calendar of the Special Civil Part. The motion was granted by order dated May 1, 2006. Thereafter, defendant dismissed the landlord/tenant action because a notice to quit had never been issued to plaintiffs.

On June 21, 2006, Christopher Hanlon, counsel for defendant in this case, submitted an answer to plaintiffs' complaint to the clerk for filing. However, on June 27, 2006, the clerk's office returned the answer to Mr. Hanlon with a letter stating that it had not been filed within the time required by Rule 6:3-1. The letter also stated that the case had been in default as of June 19, 2006, and a motion or consent order was required to file the answer. On August 1, 2006, Mr. Hanlon served interrogatories upon plaintiffs' attorney.

The trial judge conducted a proof hearing in the matter on August 11, 2006, at which plaintiffs both testified in support of their claims. Plaintiffs' attorney also submitted a certification which stated that his fees and costs totaled $5,112.50. The judge asked whether the complaint had been served upon defendant personally, and plaintiffs' attorney stated that the complaint was served upon Leonard P. Kiczek, the attorney who represented defendant in the landlord/tenant matters.

Plaintiffs' counsel also stated that Mr. Hanlon had contacted him on June 7, and counsel sent Mr. Hanlon a complete copy of the file including plaintiffs' discovery request. Plaintiffs' counsel added, "From neither attorney nor from [defendant] personally has a timely answer ever been filed." Counsel did not mention the answer that had been submitted to the court for filing on June 21 and returned by the clerk, nor did he mention defendant's demand for discovery. The judge asked whether defendant or his ...


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